Options to Resolve a Dispute.

Note: Askin & Hooker recorded this webinar presentation of which this is one episode. The webinar presentation is produced and recorded for the ear and it was designed to be either watched live on video or listened to via audio. If you are able to, we strongly recommend listening to/watching this episode which will include emotion and emphasis that isn’t obvious when reading a transcript. Our transcripts are generated using a combination of speech recognition software and humans. They may contain errors. Please check the corresponding audio before quoting in print. This is not meant to be legal advice.

Kelly Stoll

Good evening everyone. My name is Kelly stall and we’re here tonight to talk about disputes we’re going to give a few more minutes for any stragglers to join us it’s just about exactly seven o’clock so we’ll give it just a couple more minutes before we start please bear with us and thank you?

Kelly Stoll

All right, I’m gonna get started if you joined us a minute or two late. My name is Kelly Stoll. I’m an attorney here at Ascon and hooker in Sparta, New Jersey. And my specialty as an attorney is litigation. My background is specifically in personal injury litigation and medical malpractice, and in the last few years has also focused more on various other areas of litigation such as estate litigation, commercial litigation, some property disputes, and some small business disputes. Deciding whether or not to grant injunctive relief. For example, they might weigh whether or not your complaint or your claim can be remedied with money later on. If so, they’re probably not going to grant injunctive relief.

Kelly Stoll

They might weigh whether or not you have a clear legal rights. For example, if it’s something that’s a little bit of a novel, claim where you’re saying, somebody should have to do something for me or stop doing something to me, and there’s a question about well, do they have a legal obligation to do that? Or do you have a legal right to make that claim? The courts are going to weigh that too. They’re also going to look at how likely are you to win? Is it a little bit of a far fetched claim, and there’s no way that you’re going to win that case? All of those things are factors that the court will consider. And it’s not an exhaustive list. But it’s meant to give you an idea of things that the court will look at, in deciding whether or not to give you the relief you might be seeking. If you were to go to the courts.

Why does that matter? Most things can be addressed via money. And that is the goal of our civil justice system, generally speaking, so injunctive relief, although it is possible, and in unique situations helpful. It’s also very rare, and doesn’t get granted that often. Most civil cases revolve around money. And that’s how we redress harms. If you’re injured in a car accident, for example, we compensate people for that with money. You know, disputes over breaches of contract or anything like that are all addressed via money. So that’s really what we’re going to focus on, and what the courts tend to focus on most of the civil litigation that we see. So I’m going to talk a little bit more about that and dive into it a little bit further. Because there are different claims that come up. And I’m going to talk a little bit for a minute about the different types of claims that we often see come up, that involve civil disputes that end up in court. Hopefully, we can avoid some of these early on.

But the goal of tonight is to really give you an overview of what your options are, so that you can evaluate when something happens. How do you feel about it? And what do you really want to pursue? And what makes sense? Now, the times where people do you have a right to assert some sort of claim over a dispute or disagreement, that right comes from a couple of different areas. Most commonly, it either comes from common law, or a statutory right. And as I’m diving deeper into some of these, if you do have any questions, I’m gonna ask that you put them in the chat, I will do my best to address them while we’re on the topic before I move on. And if we run out of time, then I’ll try to save a few minutes towards the end. So if you do have any questions, feel free to put them in the chat. Because I’m kind of diving right into the substance here.

What I was referencing now is the basis for claims that people make when I talk about common law claims, those are claims that people are allowed to make and have a right to make, because they are just so embedded in our history and in our judicial system, that they’re not questioned. They are that way because it always has been we’ve always had that right. So something like a personal injury, for example, if you’re hurt because somebody maintained their property in a way that led to you being hurt, or hurt you in a car accident or something else. That is what we call a negligence claim. Negligence is so well recognized in the law, and has been for hundreds and hundreds of years going back to medieval England, that we call that the common law, it has just evolved that way. And we recognize it in our courts and in our judicial system.

The other way that people have a right to pursue a claim against somebody else, is via some sort of written authority. And that written authority can come in different forms. It can come from a contract, someone else has an obligation or a duty to you or you have an obligation or duty to them because you negotiated those obligations and duties and you wrote them down in a contract. It doesn’t necessarily have to be written it could be verbal too, but there is some agreement to rely on that you are trying to enforce. That is one source of written or sometimes even verbal. authority that could give rise to a claim that’s not based in the common law. The other potential source is laws and statutes. Those are written authority. Sometimes when we have a law that’s on point, it gives what we call a private right of action to an individual person to pursue a claim. Examples of that are things like the Americans with Disabilities Act, the LAPD, the law against discrimination,

Kelly Stoll

lemon laws, HIPAA violations, those are all examples of laws that are written at either the state or the federal level, that give private rights of action for an individual person to pursue a claim against somebody else who violates one of those rights. Sometimes there are also options for a governmental authority, an agency or something like that, to pursue those claims against somebody who’s wronging someone else. But the claim that you can really pursue yourself is that private right of action, it has to be provided for in the statute. The other areas where we see civil disputes arise frequently, that are based more on the common law are torts, which are the personal injury, as I spoke about, anytime somebody is injured, we would classify that in the law as a tour property rights. That could apply to landlord tenant situations, you can have a dispute as either the landlord or the tenant. property lines, boundaries, how you’re using your property, things like that.

You could have a claim against the town, or some other governmental authority because of a dispute you’re having with them. Maybe they’re allowing you to do something or not allowing you to do something that can sometimes come up in the civil context. And in some situations, there are laws or statutes or regulations that allow you to pursue claims in the courts. That’s something that can also come up with your neighbors, if somebody is harming your property or doing something to your property. It can also come up in family law, disputes over custody arrangements, visitation, child support, alimony, all of those things are all examples of disputes that arise in the civil context and address in this little justice system. It can also come up with the state’s that’s another sort of tangential area that involves families, where there’s a dispute over somebody’s Estate, a wills not clear, you believe somebody is not acting appropriately as an executor, or is misusing the state funds for that somebody was unduly influenced to sign a will disinheriting somebody, for example.

So those are all common areas where these disputes arise, and they end up in the courts in the justice system. So what happens, once you have a dispute that falls within one of these areas where you can pursue it yourself? Well, the first question you might want to ask is, do I need an attorney or not? That’s an option you have, you don’t have to use an attorney. But we always recommend at least consulting somebody because it can get a little bit messy. And you may not know what your options are. As much as recovering here tonight. This is not specific to any particular circumstance for a fact pattern. And there might be other options or alternatives that can be helpful to you. But that’s always going to be the question is what is the issue? And can the law help you in some way? And if so, what is the best way to enforce that? As far as and I just realized that I haven’t flipped any of the slides.

Kelly Stoll

So I’m going to jump ahead a little bit to some of our options for resolving a dispute. The first one I want to talk about is negotiations and settlement. This can come up in different ways. You can negotiate and settle a dispute at any point in time. There is no specific timeframe when that happens. People often come to us about a car accident or an estate dispute or any of the other types of issues that we’ve spoken about and say, Well At what point in time does a settlement happen? And the answer is always at any point in time. It can happen before you even go see an attorney if you’re having a fight with your neighbor over a fence and if it’s on your property or not, there’s nothing stopping you from talking to your neighbor and saying, hey, what can we work out?

What’s the solution that we can both live with? That would be a settlement, if you’re able to do that. So it can happen at that early stage. You could hire an attorney and retain an attorney, and be well into litigation. And the discovery process, which we’ll talk about later, and you could negotiate with the other side and come to a settlement, then you could be at trial, and selecting a jury and reach a settlement at that point in time. So negotiating a settlement with another person can truly happen at any point in time during the process. Sometimes people even get a verdict, they can finish a trial, have the jury make a decision, but somebody appeals, and they can reach a settlement while that appeal is pending. So there are no rules concerning when a settlement has to happen. It is entirely voluntary.

That means that nobody can force somebody into a settlement. If you’re talking to the other side, and saying, hey, I want $100,000. And they’re saying well, why don’t we pay you 50,000 Nobody can make them pay you 100,000. Nobody can make them meet you in the middle at 75,000. It’s completely voluntary. Likewise, nobody can make you accept a settlement that you don’t want to accept. The one of the ways that we often approach settlements, though, and that can be really very helpful in facilitating a settlement and kind of beginning that conversation. And hopefully, seeing that conversation through to an end is mediation.

Mediation and arbitration are what is known as alternative dispute resolution. Meaning it’s an alternative to a trial, which is what the justice system does, and the judicial system. A mediation is different than arbitration in that it is a voluntary process, where somebody acts as a mediator, sort of go between between two different sides. And it works because both sides can share things with a mediator that they may not be willing to share with each other. And the mediator can approach the other side and relay information and act as the go between and essentially facilitate a conversation. It’s a more formal process than just somebody going back and forth to facilitate a conversation. And and typically involves things like submitting a mediation statement in advance so that the mediator is aware of the issues and how each side feels, and what each side is willing to consider as a settlement. And it typically involves a more formal setting, but not a courtroom. It’s often an office building somewhere with multiple conference rooms. It doesn’t have to be, but that is at least one chair involved with attorneys.

That is commonly how it’s done. It can work really well. And it can be very helpful in the sense that it can come up early on and help you avoid a lot of litigation. There’s not many downsides to a mediation other than the costs because somebody has to pay a mediator. And you may reveal information in the course of mediation, that you may not have normally revealed it at that particular stage. You don’t necessarily have to, but sometimes it is helpful to reach a settlement. The biggest downside of mediation is that there’s no guarantee of work. You could invest a lot of time and money and effort into attending a mediation submitting mediation statement.

Kelly Stoll

And it may not work. If you’re using an attorney, it’s not going to be cheap, because you have to pay that attorney to put the time into writing a mediation statement, getting it all out attending the mediation and mediations can often last days, you know, hopefully it’s always only a few hours. By the same token, it can go on for a few days. That’s a lot of time so it can end up being expensive and may not ultimately work. When you attend to mediation, both sides normally have to agree on the mediator. They can suggest names it’s often retired judges or other attorneys. Sometimes the court will provide somebody to act as a mediator But everybody has to agree on the process and the person conducting the mediation. So it is still a voluntary process.

The flip side of that another method of alternative dispute resolution is arbitration. Barbara, arbitration is a little bit more of a formal process. And it’s not necessarily as voluntary arbitration agreements come up all the time, you may not realize it, but every time you buy a cell phone, or a car, or anything like that, anytime you signed Terms and Conditions on a website to use Amazon, or anything else, for that matter, those long documents that you’re asked to review and sign something saying I agree or to initial or to sign, often have an arbitration clause. What that means is that if you then have a dispute over the service, the product anything like that, and you went and said, Well, I’m gonna sue you, I’m gonna get an attorney, and I’m gonna sue you because I don’t think I should have to pay this or because I think you owe me money.

They could pull that out and say, Well, you agreed to an arbitration process. And an arbitration process can be binding or non binding, meaning that you go to somebody who makes a decision, and decides who’s right. And that can decision can either be binding or not. Sometimes it’s one individual person conducting arbitration. Sometimes it’s a panel of a couple of arbitrators. It depends on the terms of the arbitration clause, and who’s conducting the arbitration, and what the sides can agree on. If that’s if there’s any voluntary options in there. Sometimes what happens is people will sue. And the other side will say, Well, no, there’s an arbitration agreement. And we’ll file a motion to compel arbitration and to require the parties to go to arbitration. So the there are some pros and cons to arbitration, the pros are that it is still less formal than suing somebody and going through a lawsuit and eventually having a trial. But it is more formal than a mediation, and it can be binding.

Kelly Stoll

It’s less expensive than a lawsuit. But you also don’t have to it can be faster than a lawsuit to. But you’re also not going to get all of the same rights and options and sort of procedural safeguards that you would in a lawsuit. And by going through a trial. So that’s one of the cons. People can might often feel to that it’s a little bit more favorable to the party who has an arbitration clause. So for example, if I buy a car, and I think that there is an issue with the car, or I want to return it, and I say to the dealer, hey, I thought you were selling me car x and you actually sold me car a or something else for that matter. I might sue them and say I want my money back. They could say, well, here are you sign an arbitration agreement. And then we’d have to go through the arbitration process. The last option, if neither of the other options either have worked or are applicable, is litigation.

Litigation is what we talk about when people talk about suing someone that’s litigation. It is a judicial process, meaning that is it begins and ends with the courts, and is managed and controlled by the courts. Litigation starts with somebody filing an initial pleading, it’s almost always going to be a complaint. Sometimes that complaint can be accompanied with sort of an emergency motion, or some other request for some form of relief to the court. But it always starts with a complaint that is essentially complaining about something that somebody else did. Either somebody hurt me, they’re doing something to me, they’re harming me, I want to stop something like that. A complaint is often very general, and might just say something like, person X operated their car negligently as a result of that they injured me and I’m permanently injured. It can be as simple as that. It can also be much more involved. Those are all strategic decisions. And it might vary too. With a specific type of claim. But everything starts with a complaint. Once that complaint is filed, you kick off what we call the litigation process is the other side has to join the case. And both sides have the opportunity to get information from each other.

The benefit to that and the pros are that you can really fully flush out your case, when people come and say, well, they should have this document or this document or this document or I want to see what they have, or I think they’re hiding something from me, the way to get all of that information is via litigation. It can allow everybody to really fully air their grievances, and get all of the information. It can also allow people to have their day in court allows people to feel heard, and to have somebody make a decision on who’s right. And whether or not they are, they should be awarded something to compensate them for some harm. It is unfortunately a very long process. The litigation process is not short, where we see the wheels of justice turn slowly. And they do some cases move faster than others. But litigation can typically take anywhere from months to years. There’s no magic wand that can make it go quickly or and quickly, or get a quick resolution. Both sides get to have their version of events fully fleshed out and presented.

Oftentimes, when there’s a dispute, it might seem to you very obvious that you are telling the truth and that your version of events is clearly right. And how could anybody see it differently. But what happens is that the other side sees it the same way. It’s often subjective, and it might seem like well, they’re lying or they’re wrong. But at the same time, sometimes people have different views or different angles, or are looking at different things. And you can end up with two completely different versions of the same event. The goal of little litigation is to allow both sides to present each of those versions, and for somebody to decide, well, which version is right. And that is the entire goal of litigation. It allows disputes to be decided on the merits. And to have a really sort of full decision after somebody’s considered everything. Litigation ends with a trial. And that trial can either be in front of a jury or a judge.

Kelly Stoll

But it allows somebody to hear both versions and to make a decision. The downside is that it is a long process. And it can be very expensive. Some people choose to represent themselves in litigation, and that’s fine. However, in some situations, that’s not an option. And if you have to pay an attorney to represent you, litigation is extremely time consuming. And most attorneys charge hourly rates. So if it takes three hours to write out a complaint, well, that attorney is going to charge for three hours of their time. So the cost of litigation can really add up very quickly.

By the same token, it does allow a more definitive decision on the merits. And it allows people to really get all of those things that they feel like the other side might be hiding or has, or to sort of present their version of events. I’m gonna dive a little bit more into the courts and how the courts work to address disputes because that’s an area that is often unknown, and a little bit of a mystery to people. People come to us and a lot of times don’t really have an understanding of how the courts work and how lawsuits work and what to expect. So the second part of this conversation tonight, is designed to really give you an idea of how the courts work and what to expect if you’re contemplating potentially filing a lawsuit. When you file a lawsuit, there are a lot of questions you have to address right off the bat offense strategic questions.

One of the first things you have to decide is what venue Do you file your lawsuit in? We live in the state of New Jersey And presumably if you’re observing this webinar you do too. And in the state of New Jersey, we have 21 different county courts, the superior courts, every county has their own Superior Court with their own judge. The very first question to address is what county? And when I say County, that’s the term in the courts. It’s called venue. What venue does the case get filed in? Typically, it can be filed in the county where one of the parties resides. Sometimes there may be a question about, well, where does the party reside? If it’s a company and they’re doing business in multiple counties, can you pick any of those counties, sometimes there are different legal standards that apply. But that does mean that if you live in Sussex County, for example, you could end up with a lawsuit in Essex County, or Hudson County or Camden County. It doesn’t necessarily have to be the county where you live. That’s sometimes surprises people, but it could be the county where somebody else in the case lives.

The second class question becomes then what division? Once you pick the county, what division Do you file the case in? In New Jersey, we have different divisions of the courts, there is the Civil Division, the Chancery Division, the family division, and the Special Civil Part. There’s some nuances, some things might, can potentially span different divisions or be classified a little bit differently. But those are really the big areas where cases are filed in New Jersey. And each division has procedures that are unique to that division, procedures or rules that are unique to that division. The Special Civil Part, by definition is the part of the courts that handles cases where the value of the case A is for money, and B is for less than $15,000. So they’re smaller cases, when they’re really small cases beneath $3,000. That division is part of the Special Civil Part. And that’s called Small Claims. In small claims court, anybody can represent themselves. Once you exceed small claims court, if you’re an individual person, you can represent yourself. But if you are a company, or an entity, a nonprofit, corporation, an LLC, sometimes a Community Association, or Hoa, all of those different entities have to be represented by an attorney. They cannot represent themselves, that often surprises people. So if you’re a small business, and you’re an LLC, or you know a small closely held corporation, and somebody owes you money, and it’s $10,000 and you go to file a lawsuit for that money, you might be surprised if the courts kick it back and say you need an attorney can’t handle this yourself. Within the Special Civil Part, there’s also landlord tenant court. So landlord tenant issues get decided there are two. Most commonly those are evictions. And even after somebody is evicted, there can still be a separate civil lawsuit for unpaid background. For example, if the landlord succeeds in evicting a tenant, and the tenant has to vacate the property and leave the property, now the landlord has succeeded in getting their empty property, but they might still be owed three months worth of rent. They could then turn around and file a separate civil lawsuit in the Special Civil Part for that amount of money.

Kelly Stoll

Most cases in New Jersey, they’ll fall within the Civil Division. Any case for money over that $15,000 threshold falls within the Civil Division. Things like personal injury cases, anything like that falls within the Civil Division. Sometimes request for injunctive relief still fall within the Civil Division. For example, if you are anticipating suing somebody and you wanted to impose temporary restraints, which is a legal term meaning you want them to you want to stop them from transferring money out of their name to avoid you getting it well. That’s something that could be a request for injunctive relief in the civil division. So the Civil Division addresses most cases in New Jersey most lawsuits over disputes or harms the Chancery Division, addresses cases that are a little bit more unique, sometimes involving Municipal Court. Not municipal court but municipalities, counties forms of government. The probate division addresses things like a states, guardianships anything that would fall under the circuit or be filed with the circuit.

So those are all the different potential divisions of the courts. And as you can see, they all have their own type of case that they address. What happens? Once you file once you select the venue and the division of the court, and you file that initial pleading the complaint, the other side then has gets a chance to respond to the claim, they can file an answer. Most answers are gonna say I deny everything that you’re saying. But sometimes they might agree with some aspects of what you’re saying, but not others. So the complaint and the answer are effectively responding to each other. Once the answer is filed, and it doesn’t have to be an answer, it could also be motion practice, it could be somebody saying, I think this complaint is so incredibly frivolous, that it should just be dismissed, the court shouldn’t even entertain it. And sometimes if it truly is, or there really is nothing to it, the virtual dismiss it right off the bat.

So when you hear about things like frivolous lawsuits and people saying, well, this is a frivolous lawsuit, there is a mechanism in the courts, for the courts to address that and to dismiss a complaint right away. It has to be a pretty egregiously baseless complaint. Those motions are not often granted. It is an uphill battle, because the goal of the courts is to allow everybody to have their side heard. So the courts are often very reluctant to grant a motion to dismiss without knowing anything else, or anything that might come up, especially because complaints tend to be very vague. But nonetheless, people can file a motion to dismiss, and there are times where it’s granted, if it’s not granted, or if it’s not appropriate for a motion to dismiss, because the complaint might have some merit to it, or at least is not so meritless, that it’s going to be dismissed, then you file an answer.

Once that answer is filed, and the person filing the answer is the defendant and does have the opportunity to assert other claims. For example, if they want to complain back about the plaintiff, the person who filed the complaint, they can file a counterclaim, if they want to say, Well, what the complaint is talking about also involves this other person, they can name other people and bring other people into the case. So the answer is a way of making sure that the defendant gets to respond to the plaintiff, and also gets to raise any other issues that they believe should be heard at the same time.

Once that answer is filed, then you start a discovery process. And the discovery process allows each side to discover information from me from each other. In New Jersey, most often in the Civil Division, for example, we assigned discovery to what we call tracks. And each one assigns an amount of time that you have to conduct the discovery in it could be 150 days, it could be 300 Something days. But it is an amount of time that the courts and the judicial system feels appropriate for both sides to fully flesh out the issues related to that case, within that time period. Obviously, for simpler cases, it’s going to be a shorter time period. And for more complex cases, it’s a longer time period. So the nature of your case, and how involved it is, is going to dictate how long discovery continues for. But if it’s a longer time process, where you have a 300 day track, right off the bat, you know that it’s going to take at least a year for that case to be heard. Once that discovery process kicks off, both sides get to seek information from each other. And that’s designed to allow the sides to fully flesh out their pieces, their claims and their defenses. And to discover what the other side might say.

You know, you can take a simple car because a car accident as an example, where somebody files a complaint and says I was hurt in a car, and now the defendant answers and says, okay, but the reason that this car accident happened is not because I was negligent, it’s because you swerved into the road right in front of me, and you left that part out when you filed your complaint. So it’s, um, you know, a way to discover what the other side’s going to be saying. If you’re the defendant in that car accident case, using that as an example, you want to find out well, what injuries is this person claiming? And what proof do they have those injuries? If you’re the plaintiff in that car accident case, you want to find out what is the defense going to say? Are they going to say I’m not really hurt? Are they going to say that they had some excuse for why the accident happened and that they weren’t really negligent? Are they going to say that, you know, they had a medical emergency they had a heart attack while they were driving or that there was something along with the car.

So those are just a few examples to show you why we want to conduct this discovery process on why both sides want to find out information from each other. Our rules in New Jersey, and in most jurisdictions, there are rules allowing different types of discovery, the most common is written discovery. And that tends to come up first, both sides serve written questions on each other that the other side then has to answer. And those written questions can take different forms. It can be something as simple as, tell me all of your injuries, or tell me all of your defenses. Tell me all of your witnesses, or your experts or things like that. It can be a little bit more nuanced. It can say, admit that this specific law applies, for example, admit that you have to stop at a red light, and can be used as a way to narrow down the issues in a case. It can also be used as a way to say, I want you to produce something to me, I want you to produce your X ray showing me that you broke a bone in this car accident, or I want you to allow me to go out and look at and take pictures of this site where I fell so that I can inspect whether or not the ground was level or whether or not there’s a pothole in your parking lot. And that’s the reason I fell and got hurt.

So that written discovery can take different forms. But it’s designed to give everybody all of the information that they need to allow cases to be decided truly on the merits, and not just based on one party’s version of events. Another discovery tool that we can use is a subpoena. So once a case is pending, people often hear the term subpoena and don’t understand what it means. A subpoena is a way to get discovery from somebody who is not involved in the case. At that point, they are not a plaintiff or defendant, they may become one down the road, they may never become one. If we’re going back to that car accident example, a subpoena could be served on a doctor saying I need to get the injured person’s medical records. It can be served on a witness who you think might have pictures of the scene where the accident happened. subpoenas can sometimes be served on a cell phone provider or a social media website.

These are all just different examples of how a subpoena might be used to obtain discovery from somebody who is not a party to a case. One of the next discovery tools is depositions. Depositions are testimony that are taken under oath. When you take somebody’s deposition, they are placed under oath and is the exact same oath that they take when they testify at a trial in a courtroom in front of a judge and a jury. But the goal of a deposition is a little bit different. Because you’re not just trying to present your version of events to a judge or a jury. You are trying to seek information, you want to collect and pull information out of the person. So if we go back to the car accident example, you might have written discovery that from the other side says I was hurt, you are negligent, here’s my injuries, I broke a leg. But you might want to take that plaintiff’s deposition and say, Well, what kind of treatment did you have for your life? What happened each and every time you went to physical therapy? What did this doctor tell you, you might want to get a little bit more color a little bit more information that’s not necessarily reflected in written records or written answers.

The other reason that we often take depositions is because you might want to see how somebody presents and how they come across. That’s something that you can never find out from written answers. Are they going to come across like they’re credible? And they’re telling the truth? And they’re honest people? Are they going to present one day like they are keeping secrets? Or lying, or sort of distorting what happened? Are they just going to present like they’re kind of a jerk and not likeable? And you think a jury might not like them. So those are all different reasons to take depositions. But Depositions are really critical discovery tool. They do come up well in advance a trial. They’re not required. So you can take a deposition of somebody who’s a party to a case, but sometimes you may not want to, there may be reasons you don’t want to. It can be reasons like costs, you just feel like it’s unnecessary. It can be a reason, a strategic reason, insofar as maybe you are. You think that the questions you would ask at a deposition are going to tip somebody off as to where you’re going or what arguments you’re going to make in the future. So depth decisions aren’t required, but they are useful. And the same thing is true for both brand discovery and subpoenas, none of these tools are required. But they are all very useful and are all available to litigants to flush out the claims and defenses in a case.

So when I said earlier, in weighing the different options for resolving disputes, like mediation, or arbitration or litigation, this is the reason that I said litigation allows people to really, truly find out all of the information and to present it and to have it heard. That’s not necessarily true for mediation or arbitration. By the nature of those procedures, they don’t allow for the full discovery process that litigation dots. The other area that comes up in discovery is experts. Depending on the type of case, you might need an expert witness. If you are having a property dispute with somebody, and you’re claiming, well, my neighbor did something to their property, and now all the water is running off into my yard and getting into my house and causing mold and damaging my house.

You might need an engineer or somebody who can talk about what how what your neighbor did cause that to happen. Because it’s not necessarily obvious that it’s not just well, a lot of rain one day. In cases where somebody’s claiming to be hurt or injured, they often need medical experts to talk about their injuries. In a business case, you might need an expert to talk about the value of a business or the you might need an appraiser to talk about the value of real property. If somebody’s claiming, well, the value of my property is now less because you did something to it that makes it not as valuable. And in state litigation, we might need medical experts to talk about a dissidents, health and what their mental mental status may have been like. And if they had capacity to sign a well. We might need an expert in an estate litigation to talk about the value of a business that somebody had an interest in, or a real estate expert to talk about the value of real property that somebody had at the time to die. So there are a lot of different ways experts come up the examples I gave you are not exhaustive. But it’s anything where the average layperson doesn’t necessarily have that information. And that the and the information from an expert who has some advanced knowledge of that area, would help a jury or a judge if it’s a bench trial to understand what to understand information to resolve that dispute and decide who they think is right.

Kelly Stoll

Once you get through all of that, the discovery process ends. In New Jersey for most cases, the judicial system then provides for an arbitration but typically a non binding arbitration. And that often comes up before trial. It doesn’t have to happen. And in some cases, the courts don’t provide for it. But it is very common, especially in civil cases and in the Civil Division, that the courts will by default, just schedule on arbitration. At the end of the discovery process, that can be very useful, because it helps people see sometimes how much an objective person who hasn’t been living with the case and hasn’t been swayed by their own version of a dispute might see things.

They might not believe something’s that one side is saying they might think that an aspect of a case that one side thinks is a really big deal. They might look at it and say, well, it’s not such a big deal. They might look at it and say, Well, I think that you know you would succeed, but you’re only going to get this much money and it’s less than you thought you would get. So when the courts do arbitration at the end of the discovery process like that it is a non binding arbitration, meaning that if you don’t like the outcome, you can file something called the demand for a trial de novo. And then you can still get your day in court and go to trial. So that’s what we call a non binding arbitration because it’s not final. Both sides have the option to accept that arbitration decision. But either one can also file that trial, de novo demand and can move on to a trial. Sometimes even when that happens, the arbitration has still been useful because it can serve to jumpstart a settlement discussion and some negotiations. So when arbitration comes up in the context of civil litigation in the Civil Division, it can still be a very useful tool even though it’s coming much further down the road.

Once you get through that, assuming that you still have to go to trial, and you have not yet settled the two main types of trials that happen in this civil system, either a jury trial or a bench trial, a jury trial is when we pull in a pool of jurors from the county or the jurisdiction. And the judge speaks to them and ask them questions. Sometimes the in some jurisdictions, the attorneys can ask some questions. Sometimes the attorneys can give a judge questions to ask the jurors. And as you kind of sort through the jurors and who can serve and who is unbiased enough to serve as a juror, you end up with a jury that’s impaneled, and then begins to hear a case. And that trial process involves both sides presenting their version of the dispute to the jury.

The jury watches all of that information, and then has to make a decision. And they don’t do so blindly. The judge does give them instructions and tells them what they can consider and how they can be the evidence. But the entire purpose of a trial is to present evidence to that jury, and the way we do that is through calling witnesses. So when you see people testifying at trial, that is evidence being presented to a jury. Again, it can be lay witnesses, meaning people that just have factual knowledge, things like I watched this car accident happen, and I saw that the traffic light was red, it could be an expert witness who is there to talk about medicine or some sort of more sophisticated area that the jury may not know or understand on their own. The entire purpose of a trial is to present your version of events to the jury. The problem, not the problem. But the flip side of a trial is that the other side gets to do the same. Both sides get to present their version of events. The jury does not know.

Kelly Stoll

They only know what is presented to them in that courtroom. They don’t know who’s honest and who isn’t. They don’t know who to believe or who not to believe. They are the Fact Finder. And what their job is to do is to weigh the credibility of the witnesses and the evidence. So one witness might present really well and the jury finds that believable, and another witness saying exactly the opposite might just not present well. So it’s really kind of impossible to know when to predict how a jury is going to perceive things. Regardless of how strongly you feel about your position, or your version of the dispute. The jury then goes into a room and deliberates and comes back with a decision that you’ve had absolutely no input into. So it can be. And it can be surprising to people when they reach that point, that they are really completely at the mercy of the jury and what they decide and you have no way to predict or to know that which is one of the biggest downsides to civil litigation is that if you choose to go through the litigation process, you don’t know what the outcome will be. It is impossible to know.

Everything I’ve just explained has to do with a jury trial. But we also have bench trials, which is when a judge fills the role that a jury would otherwise fill. And sometimes that’s because laws or statutes say that it should be a bench trial. Sometimes that’s because the parties for some reason feel that the case isn’t appropriate for a jury, or is not well suited to having a jury and just decide that they’re better off having a bench trial. But whichever one you experience, the outcome is unknown, and you can’t possibly know it. And no outcome is ever 100%. So it’s always a little bit of a gamble. For that reason, you kind of go back to looking at settlements. And that’s why as attorneys, we often encourage people to try and settle early on, because trials can be very risky. And even if you win, it may not be worth it in the long run, because a jury may not award you a lot of money or they may not award you what you were hoping they would. And you may regret not having settled earlier when you had the opportunity to get more money or a better outcome for yourself, whatever it is.

So that’s why as attorneys, we always encourage people to think about settling at any point in time, because that’s a short thing. You know what you’re getting with the settlement, even if it’s not the outcome, even if it’s not your ideal outcome. It is a short one. And you know what it’s going to be so it kind of protects it. insulate you against the surprise of a trial, where you go in potentially feeling really confident and end up disappointed. By the same token, a settlement mediation arbitration, they may not give people that feeling as though they’ve had their day in court. And that’s why these are all different mechanisms in different options to address disputes that an attorney can help you sort through to weigh what is best for you. But they are all worthy of consideration for different reasons. And in different scenarios, they’re going to work better than others, depending on your situation. So if there is a dispute that you have, or that you can, per se, you should reach out and speak to an attorney and just fill out what might be the best fit for your particular dispute. That’s kind of the overview I really wanting to give you tonight.

Of course, if you have any questions or want to reach out, if you have any last minute questions, now, feel free to put them in the chat. Alternatively, my contact information is right here, you can reach out to the office and we are always happy to help with any disputes that might be coming up. So feel free to reach out with any questions or to schedule a consultation or speak to us. We’re always here. And I’ll give it just a minute in case anybody has any last question that they want to put in the chat.

And if not, then we appreciate your time. We appreciate you being here with us tonight. I hope this was informative and gave you a better sense of things to think about. If you’re having a dispute with someone. Have a good night everyone.


Sign Up for Our Newsletter